"Evasive Witnesses"
Beth Golden glared at the witness in disgust. She walked purposefully back to the counsel table, slammed down her yellow legal pad, and said, “No further questions, Your Honor.” She had just finished her first cross-examination of the man reputed to be the toughest witness in town – Dr. Michael Finnegan, the economist.
Mike Finnegan has more trial time than lots of experienced lawyers ever get, and more ways to avoid answering difficult questions than most books on cross-examination even list. It was the first time Beth was up against “Famous Finnegan,” so she had asked Angus to come and watch. At the end of the day she asked for his critique.
“So what do you think, Angus,” said Beth. “Not bad for the first time, huh?”
Angus smiled. “Logically, you destroyed him,” he said. “I listened very carefully, and you showed that Finnegan’s calculations were based on nothing but a series of unjustified suppositions.
“But there’s more to it than just logic,” Angus said. “How do you feel about it?”
“I feel like I really kept him in line,” said Beth. “I didn’t let him wiggle an inch. Every time he wanted to ‘explain’ his answer, I cut him off. Every time he tried to volunteer something, when there was no question pending, I put a stop to it. Every time he tried to inject something different, I rubbed his nose in what he had done. I’d say the score was Lawyers – 10, Economists – 0.”
“Let me ask you a question,” said Angus. :How do you feel when a witness gives you an evasive answer?”
“How do I honestly feel?” asked Beth. “I resent the hell out of it. I figure they are just trying to interrupt my show – do what they can to throw a monkey wrench in my case. I’m entitled to ask my questions my way, and they’re supposed to give you straight answers – not play little word games. But at least I have some techniques for dealing with the situation.”
“That’s what I thought,” said Angus. “And now I’m ready to finish answering your question – if you want it.”
“Of course,” said Beth. “That’s why I asked you.”
“Like I told you,” said Angus, “logically, your examination was masterful. You won, hands down. But emotionally, Finnegan killed you. By the end of the cross-examination, everyone on the jury was convinced you had kept this simple economics teacher from telling his whole story. You looked like you beat him up, and it’s going to cost you something before the trial is over.”
It’s Not Just Logic
Beth’s problem is a classic one. It is the difficulty that besets the journeyman cross-examiner – the one who has progressed beyond asking long, rambling questions, or asking a witness “why?”
The journeymen are the lawyers who have already achieved some technical proficiency in examining witnesses. They understand that cross-examination is a special opportunity for the lawyer. It’s not just poking a hole in the witness’s story here or there. Cross-examination is the opportunity for the lawyer to be the witness. It lets the lawyer do the testifying, and if she does it right, the witness on the stand has to admit that what the lawyer says is correct. Done right, the witness’s very reluctance helps validate what the cross-examiner says.
And the rules help create that impression. You can ask leading questions on cross-examination – not just to control the witness, but also to create the subliminal impression that the witness can’t quite be trusted – he needs to be told what to say. And non-responsive answers can be stricken precisely because cross-examination is designed to give the lawyer the opportunity to tell “the rest of the story,”
But in the logical process of providing the judge and jury with information, the evasive witness is a genuine fly in the communication ointment. Every evasion stops the flow of information. It lets the air out of the impression the cross-examiner has been building. It distracts the judge and jury with yet another bout between lawyer and witness.
And so journeymen trial lawyers often fall into the same trap that Beth Golden did. They resent the evasive witness and slap her down at every opportunity.
But the purpose of cross-examination is not just to get information across. It is to create the right impression. Deanne Selmer, of Washington, D.C., author of Tangible Evidence (1987), says that most of the time you don’t really develop much information on cross-examination.
“Normally, you’ve got everything you have to prove in your own case in chief,” Selmer says. “So the point of cross-examination is not so much to get information, but to show something about the other side. The purpose of cross is to tell the good guys from the bad guys.”
Selmer’s point is a good one. Too much witness control is like your neighbor who uses a choke leash to walk his dog. You may not start out liking the dog, but before long you sympathize with him for the way he’s being treated.”
Expert Evasion
You may not believe you do it yourself, so watch some other lawyers do some cross-examinations. It is amazing how many lawyers take every nonresponsive answer as a personal affront. And once the lawyer takes it personally, it’s only a matter of minutes until the “good guys” are the other side.
You see the problem. We act as if evasive witnesses are sme sort of oddity – and that they only do it to annoy.
But the truth is, evasion is a natural phenomenon.
Go ahead and read that last paragraph again. It has one of the most important ideas in the whole chapter. If you learn not to take the witness’s evasive answers personally, you are going to become a much better cross-examiner.
Stop Choking the Witness
One of Angus’s favorite sayings is “Cross-examination.is not angry examination.” And he’s right. Once you stop getting angry at the witness, there is a whole list of things you just won’t do anymore.
1. Take the blame.
The situation repeats itself thousands of times every day. You are cross-examining the plaintiff’s doctor about his diagnostic work-up. And you ask him whether he did a spinal tap to help him reach his opinion.
But instead of admitting that he didn’t do a spinal tap, the doctor gives you a five-minute harangue about the dangers of spinal taps, their high cost, and the pain they inflict on the patient.
Does it seem to you that the doctor avoided answering your question?
Of course. You asked “what,” and he told you “why not” in a speech that distracted everybody from what you were establishing.
Does it seem to the jury that the doctor avoided answering your question?
Hardly. You asked about spinal taps and he gave you a lot of information about spinal taps. Isn’t that what you wanted?
Of course not. But they don’t know that yet.
Instead of telling the witness to just answer the question, or asking the court reporter to read it to the witness – which will kill the entire pace of the cross-examination by forcing the reporter to pore back over several feet of fan-fold stenotype paper – try taking the blame:
Q: I’m sorry, Doctor, I meant to ask you whether you did a spinal tap on Mr. Blattner? Could you answer that question, please?
Two things have happened. First, you’re the good guy. Second, the jury has figured out that the doctor didn’t want to admit he hadn’t done a spinal tap.
2. Ask the question again.
As the situation escalates (as it sometimes does), continuing to take the blame can get tiresome. You can just ask the question again – exactly the way you did the first time. But watch your tone -- remember,, you’re the good guy.
As Charles L. Becton of Raleigh, N.C., says, “when you ask the question a second time, hope that your opponent will object that you’ve already asked that question. It lets you say, “We have, Your Honor, but we still don’t have an answer.”
3. Let the witness answer.
Lawyers drilled in the late Irving Younger’s Ten Commandments of Cross-Examination have learned to “Never Let the Witness Explain.”
Why not?
For fear that he might say something that would hurt your case.
If you think about it for a minute, you will realize that if he doesn’t say it now, he will get another opportunity to say it on redirect – often with a very pointed question:
Q: Mr. McElhaney didn’t ask you this question, so I will. Why didn’t you do a spinal tap on Mr. Blattner?
So the chances are, the jury is going to hear ”why” sooner or later. And maybe it would actually be better for them to hear now – when you have a good opportunity to cast a little doubt on some of the witness’s reasons. After all, it’s better than waiting for re-direct.
But a lot of lawyers don’t think that way. They are convinced that, like the bite of the hooded cobra, or perhaps the dreaded fer-de-lance, letting the witness explain on cross-examination will produce instant agony ending in certain death.
So to forfend that awful end, they do anything they can to cut off an answer that says anything more than “yes” or “no.” They interrupt with loud “Thank yous,” ”Answer the question,” “Just answer ‘yes’ or ’no,’ “ “You didn’t listen to my question,” or “Your Honor, would you direct the witness to answer the question?”
Now who’s evasive?
The lawyer. And look at the real message his evasion sends: “This is awful stuff. If you hear this, it’s going to change your view of the whole case. Please don’t pay any attention to it.”
Trying to cut off the witness is almost always a mistake. First, it is no way to win the good-guy battle. Second, even if it temporarily stops the witness, the other side will usually object that you are interrupting the witness and 9 times out of 10 the judge will say, :the witness may explain his answer.”
You are much better off letting the jury see that the witness is too much of an advocate in the case.
4. Does that mean yes?
It takes all of the witness’s verbiage and sets it off to the side. Try it in the spinal tap situation. Right after the doctor finishes his long harangue, you say, “Pardon me, Doctor, but does that mean no, you didn’t do a spinal tap on Mr. Blattner?”
5. Did your lawyer tell you to say that?
You’ve got to be careful with this one, because it’s easy to sound snotty. But if you do it with a twinkle in your eye and a smile on your face (as if to say, “Hey, you rascal, I see what you’re trying to do”), it can be very effective – especially if the evasion uses words you wouldn’t expect from this witness.
Q: Mr. Johnson, did you pull off the road when you saw the tractor coming toward you?
A: Well, I was faced with this sudden emergency in which I had no realistic opportunity to take any evasive action… (and he goes on for three more minutes with his prepared statement).
Q: Pardon me, Mr. Johnson, but did your lawyer tell you to say that?”
6. I’m sorry, but the rules of evidence don’t let me answer your question.
One way to evade a question is to ask another one in return. It happens fairly often, and when witnesses ask questions, lawyers usually handle it poorly. We tend to say something like, “You don’t seem to understand. I’m the lawyer – you’re the witness. I ask the questions – and you give the answers.”
What’s wrong with that?
Plenty, First, it flunks the good-guy test, just by telling everybody that you’re a lawyer, entitled to special consideration. Second, now you are dodging the question again, not the witness.
Try this instead. “I’m sorry, Mr. Williams, but the rules of evidence don’t permit me to answer your question. If they did, I’d be happy to explain exactly what you should have done.” Besides being a good response for not getting into an argument with the witness, this response gives you the whole rest of the trial to think of an answer that you will give the jury in final argument – when the witness can’t talk back.
7. That’s the best you can do?
There are times when the expert witness on the other side will dodge a tough question rather than meet it head-on. So Deanne Selmer likes to set up her response right at the beginning of the cross-examination:
Q: Dr. Finnegan, you have been working with this case for a number of months, haven’t you?
A: That’s right,
Q: Actually, almost a year?
A: Yes, that’s right.
Q: And you have had your deposition taken?
A: Yes.
Q: And you’ve given thought to your direct examination?
A: Yes.
Q: And you know that there are some difficult operations involved in this case?
A: Well, yes.
Q: And you’ve given some thought to how you’re going to answer those tough questions?
A; Yes.
Q: And you’re fully prepared and ready to go?
A: Yes.
It’s preparation for later on in the examination, when the witness tries to slide past a tough question. Then Selmer asks,
Q: I want to understand – that’s your very best answer. That’s the best you can do with this question?”
A: Yes.
Then in final argument Selmer says, “Remember I asked Dr. Finnegan about that point, and he said that’s the best he could do.”
8. That’s going to be up to the jury.
You ask the witness whether he could have pulled off the road. But instead of the obvious “yes,” you get a little speech.
A: Well, counselor, I did the only proper thing that I could under the circumstances. I hit my brakes.
It lets you respond,
Q: Whether you did the proper thing is going to be up to the jury in this case, Mr. Reynolds. What they need to know is whether you could have pulled off the road.
Mike Finnegan has more trial time than lots of experienced lawyers ever get, and more ways to avoid answering difficult questions than most books on cross-examination even list. It was the first time Beth was up against “Famous Finnegan,” so she had asked Angus to come and watch. At the end of the day she asked for his critique.
“So what do you think, Angus,” said Beth. “Not bad for the first time, huh?”
Angus smiled. “Logically, you destroyed him,” he said. “I listened very carefully, and you showed that Finnegan’s calculations were based on nothing but a series of unjustified suppositions.
“But there’s more to it than just logic,” Angus said. “How do you feel about it?”
“I feel like I really kept him in line,” said Beth. “I didn’t let him wiggle an inch. Every time he wanted to ‘explain’ his answer, I cut him off. Every time he tried to volunteer something, when there was no question pending, I put a stop to it. Every time he tried to inject something different, I rubbed his nose in what he had done. I’d say the score was Lawyers – 10, Economists – 0.”
“Let me ask you a question,” said Angus. :How do you feel when a witness gives you an evasive answer?”
“How do I honestly feel?” asked Beth. “I resent the hell out of it. I figure they are just trying to interrupt my show – do what they can to throw a monkey wrench in my case. I’m entitled to ask my questions my way, and they’re supposed to give you straight answers – not play little word games. But at least I have some techniques for dealing with the situation.”
“That’s what I thought,” said Angus. “And now I’m ready to finish answering your question – if you want it.”
“Of course,” said Beth. “That’s why I asked you.”
“Like I told you,” said Angus, “logically, your examination was masterful. You won, hands down. But emotionally, Finnegan killed you. By the end of the cross-examination, everyone on the jury was convinced you had kept this simple economics teacher from telling his whole story. You looked like you beat him up, and it’s going to cost you something before the trial is over.”
It’s Not Just Logic
Beth’s problem is a classic one. It is the difficulty that besets the journeyman cross-examiner – the one who has progressed beyond asking long, rambling questions, or asking a witness “why?”
The journeymen are the lawyers who have already achieved some technical proficiency in examining witnesses. They understand that cross-examination is a special opportunity for the lawyer. It’s not just poking a hole in the witness’s story here or there. Cross-examination is the opportunity for the lawyer to be the witness. It lets the lawyer do the testifying, and if she does it right, the witness on the stand has to admit that what the lawyer says is correct. Done right, the witness’s very reluctance helps validate what the cross-examiner says.
And the rules help create that impression. You can ask leading questions on cross-examination – not just to control the witness, but also to create the subliminal impression that the witness can’t quite be trusted – he needs to be told what to say. And non-responsive answers can be stricken precisely because cross-examination is designed to give the lawyer the opportunity to tell “the rest of the story,”
But in the logical process of providing the judge and jury with information, the evasive witness is a genuine fly in the communication ointment. Every evasion stops the flow of information. It lets the air out of the impression the cross-examiner has been building. It distracts the judge and jury with yet another bout between lawyer and witness.
And so journeymen trial lawyers often fall into the same trap that Beth Golden did. They resent the evasive witness and slap her down at every opportunity.
But the purpose of cross-examination is not just to get information across. It is to create the right impression. Deanne Selmer, of Washington, D.C., author of Tangible Evidence (1987), says that most of the time you don’t really develop much information on cross-examination.
“Normally, you’ve got everything you have to prove in your own case in chief,” Selmer says. “So the point of cross-examination is not so much to get information, but to show something about the other side. The purpose of cross is to tell the good guys from the bad guys.”
Selmer’s point is a good one. Too much witness control is like your neighbor who uses a choke leash to walk his dog. You may not start out liking the dog, but before long you sympathize with him for the way he’s being treated.”
Expert Evasion
You may not believe you do it yourself, so watch some other lawyers do some cross-examinations. It is amazing how many lawyers take every nonresponsive answer as a personal affront. And once the lawyer takes it personally, it’s only a matter of minutes until the “good guys” are the other side.
You see the problem. We act as if evasive witnesses are sme sort of oddity – and that they only do it to annoy.
But the truth is, evasion is a natural phenomenon.
- Witnesses do it because they tend to identify with the party that calls them to the stand.
- They do it because they think the cross-examiner is trying to “twist their words” – to get them to say something other than what they want.
- They do it because they have not been trained to think closely and answer precisely.
- They do it because a series of leading questions is different from what they were answering a minute ago on direct examination and they can’t shift modes so quickly.
- They do it because they resist being dominated by a ;awyer who is only going to let them answer yes or no.
Go ahead and read that last paragraph again. It has one of the most important ideas in the whole chapter. If you learn not to take the witness’s evasive answers personally, you are going to become a much better cross-examiner.
Stop Choking the Witness
One of Angus’s favorite sayings is “Cross-examination.is not angry examination.” And he’s right. Once you stop getting angry at the witness, there is a whole list of things you just won’t do anymore.
- Browbeat and bullyrag the witness.
- Use sarcasm.
- Insist on your own terms.
- Cut off the witness’s answer.
- Insist on just a yes or no answer.
- Ask the judge for help with the witness.
1. Take the blame.
The situation repeats itself thousands of times every day. You are cross-examining the plaintiff’s doctor about his diagnostic work-up. And you ask him whether he did a spinal tap to help him reach his opinion.
But instead of admitting that he didn’t do a spinal tap, the doctor gives you a five-minute harangue about the dangers of spinal taps, their high cost, and the pain they inflict on the patient.
Does it seem to you that the doctor avoided answering your question?
Of course. You asked “what,” and he told you “why not” in a speech that distracted everybody from what you were establishing.
Does it seem to the jury that the doctor avoided answering your question?
Hardly. You asked about spinal taps and he gave you a lot of information about spinal taps. Isn’t that what you wanted?
Of course not. But they don’t know that yet.
Instead of telling the witness to just answer the question, or asking the court reporter to read it to the witness – which will kill the entire pace of the cross-examination by forcing the reporter to pore back over several feet of fan-fold stenotype paper – try taking the blame:
Q: I’m sorry, Doctor, I meant to ask you whether you did a spinal tap on Mr. Blattner? Could you answer that question, please?
Two things have happened. First, you’re the good guy. Second, the jury has figured out that the doctor didn’t want to admit he hadn’t done a spinal tap.
2. Ask the question again.
As the situation escalates (as it sometimes does), continuing to take the blame can get tiresome. You can just ask the question again – exactly the way you did the first time. But watch your tone -- remember,, you’re the good guy.
As Charles L. Becton of Raleigh, N.C., says, “when you ask the question a second time, hope that your opponent will object that you’ve already asked that question. It lets you say, “We have, Your Honor, but we still don’t have an answer.”
3. Let the witness answer.
Lawyers drilled in the late Irving Younger’s Ten Commandments of Cross-Examination have learned to “Never Let the Witness Explain.”
Why not?
For fear that he might say something that would hurt your case.
If you think about it for a minute, you will realize that if he doesn’t say it now, he will get another opportunity to say it on redirect – often with a very pointed question:
Q: Mr. McElhaney didn’t ask you this question, so I will. Why didn’t you do a spinal tap on Mr. Blattner?
So the chances are, the jury is going to hear ”why” sooner or later. And maybe it would actually be better for them to hear now – when you have a good opportunity to cast a little doubt on some of the witness’s reasons. After all, it’s better than waiting for re-direct.
But a lot of lawyers don’t think that way. They are convinced that, like the bite of the hooded cobra, or perhaps the dreaded fer-de-lance, letting the witness explain on cross-examination will produce instant agony ending in certain death.
So to forfend that awful end, they do anything they can to cut off an answer that says anything more than “yes” or “no.” They interrupt with loud “Thank yous,” ”Answer the question,” “Just answer ‘yes’ or ’no,’ “ “You didn’t listen to my question,” or “Your Honor, would you direct the witness to answer the question?”
Now who’s evasive?
The lawyer. And look at the real message his evasion sends: “This is awful stuff. If you hear this, it’s going to change your view of the whole case. Please don’t pay any attention to it.”
Trying to cut off the witness is almost always a mistake. First, it is no way to win the good-guy battle. Second, even if it temporarily stops the witness, the other side will usually object that you are interrupting the witness and 9 times out of 10 the judge will say, :the witness may explain his answer.”
You are much better off letting the jury see that the witness is too much of an advocate in the case.
4. Does that mean yes?
It takes all of the witness’s verbiage and sets it off to the side. Try it in the spinal tap situation. Right after the doctor finishes his long harangue, you say, “Pardon me, Doctor, but does that mean no, you didn’t do a spinal tap on Mr. Blattner?”
5. Did your lawyer tell you to say that?
You’ve got to be careful with this one, because it’s easy to sound snotty. But if you do it with a twinkle in your eye and a smile on your face (as if to say, “Hey, you rascal, I see what you’re trying to do”), it can be very effective – especially if the evasion uses words you wouldn’t expect from this witness.
Q: Mr. Johnson, did you pull off the road when you saw the tractor coming toward you?
A: Well, I was faced with this sudden emergency in which I had no realistic opportunity to take any evasive action… (and he goes on for three more minutes with his prepared statement).
Q: Pardon me, Mr. Johnson, but did your lawyer tell you to say that?”
6. I’m sorry, but the rules of evidence don’t let me answer your question.
One way to evade a question is to ask another one in return. It happens fairly often, and when witnesses ask questions, lawyers usually handle it poorly. We tend to say something like, “You don’t seem to understand. I’m the lawyer – you’re the witness. I ask the questions – and you give the answers.”
What’s wrong with that?
Plenty, First, it flunks the good-guy test, just by telling everybody that you’re a lawyer, entitled to special consideration. Second, now you are dodging the question again, not the witness.
Try this instead. “I’m sorry, Mr. Williams, but the rules of evidence don’t permit me to answer your question. If they did, I’d be happy to explain exactly what you should have done.” Besides being a good response for not getting into an argument with the witness, this response gives you the whole rest of the trial to think of an answer that you will give the jury in final argument – when the witness can’t talk back.
7. That’s the best you can do?
There are times when the expert witness on the other side will dodge a tough question rather than meet it head-on. So Deanne Selmer likes to set up her response right at the beginning of the cross-examination:
Q: Dr. Finnegan, you have been working with this case for a number of months, haven’t you?
A: That’s right,
Q: Actually, almost a year?
A: Yes, that’s right.
Q: And you have had your deposition taken?
A: Yes.
Q: And you’ve given thought to your direct examination?
A: Yes.
Q: And you know that there are some difficult operations involved in this case?
A: Well, yes.
Q: And you’ve given some thought to how you’re going to answer those tough questions?
A; Yes.
Q: And you’re fully prepared and ready to go?
A: Yes.
It’s preparation for later on in the examination, when the witness tries to slide past a tough question. Then Selmer asks,
Q: I want to understand – that’s your very best answer. That’s the best you can do with this question?”
A: Yes.
Then in final argument Selmer says, “Remember I asked Dr. Finnegan about that point, and he said that’s the best he could do.”
8. That’s going to be up to the jury.
You ask the witness whether he could have pulled off the road. But instead of the obvious “yes,” you get a little speech.
A: Well, counselor, I did the only proper thing that I could under the circumstances. I hit my brakes.
It lets you respond,
Q: Whether you did the proper thing is going to be up to the jury in this case, Mr. Reynolds. What they need to know is whether you could have pulled off the road.